Yifei Ren v Double Six Business Partners Pty Ltd T/A Taste of Shanghai
[2023] FWC 2546
•4 OCTOBER 2023
[2023] FWC 2546
The attached document replaces the document previously issued with the above code on 4 October 2023.
The following changes have been made to correct:
Minor typographical errors in paragraph [64]; and
The signature line on the last page of the document, which now includes the following text:
‘Printed by authority of the Commonwealth Government Printer’
Associate to Commissioner Ryan
Dated 5 October 2023
| [2023] FWC 2546 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Yifei Ren
v
Double Six Business Partners Pty Ltd T/A Taste of Shanghai
(C2023/3158)
| COMMISSIONER P RYAN | SYDNEY, 4 OCTOBER 2023 |
Application to deal with contraventions involving dismissal
Introduction
This decision concerns an application by Ms Yifei Ren (Ms Ren/Applicant) for the Fair Work Commission (Commission) to deal with a dismissal dispute pursuant to s.365 of the Fair Work Act 2009 (FW Act) (Application).
The Application was made through the Commission’s Online Lodgement Service (OLS) on 31 May 2023. On 6 June 2023, the Commission sent correspondence to the Applicant advising that the Application was unable to be read and requested the Applicant to resubmit a completed form by 20 June 2023.
On 14 June 2023, the Applicant attended the Commission’s registry in Sydney and filed a completed application (Amended Application). The Amended Application is dated 13 June 2023.
In the Amended Application, Ms Ren stated her employment with Double Six Business Partners Pty Ltd (Respondent) commenced on 7 February 2022 and that her dismissal took effect from 30 May 2023.
In its Form F8A Response, the Respondent stated that the Applicant’s dismissal took effect from 1 May 2023. The Respondent objected to the Application on the ground that it was not made within 21 days after the dismissal took effect.
Section 366(1) of the FW Act states that an application for the Commission to deal with a dismissal dispute must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.366(2). If the Respondent’s contention is correct, the period of 21 days ended at midnight on 22 May 2023.
The matter was allocated to my Chambers to determine whether an extension of time is required, and if so, whether an extension should be granted under s.366(2).
In accordance with directions issued by the Commission, both parties were given an opportunity to file materials in support of, or in opposition to, the Applicant’s application for an extension of time.
The matter was heard on 9 August 2023. I exercised my discretion to grant permission to the Applicant to be represented by a lawyer, as I was satisfied as to the matters set out in s.596(2)(a) and (b) of the FW Act. The Applicant was represented by Ms L Cottam of Kingsford Legal Centre. The Respondent was represented by Mr Jian Yuan with Ms Min Lu, who are both directors of the Respondent and husband and wife. The Commission was assisted by a Mandarin interpreter.
The following witness statements and documents were admitted into evidence:
Exhibit No.
Description
A1
Witness statement of Applicant dated 8 August 2023.
A2
WeChat Messages dated 1 and 2 May 2023.
R1
Witness Statement of Mr Jian Yuan dated 25 July 2023.
R2
Witness Statement of Ms Min Lu dated 25 July 2023.
Background
The Applicant was employed by the Respondent on or about 7 February 2022 as a dumpling pastry preparer. The Applicant was employed on a full-time basis and worked at the Taste of Shanghai Restaurant located in Castle Hill.
On 27 April 2023, the Applicant was involved in an altercation with a colleague during which the colleague struck the Applicant in the chest with a boxed roll of cling wrap.
On 28 April 2023, the Applicant visited her doctor. The doctor provided a medical certificate which stated:
“This certifies Ms Yifei Ren is seen at this clinic today. She has purple bruising on her chest on right side of sternum which is consistent with being hit on her chest.”
The medical certificate did not state that the Applicant was not fit for duty.
The Applicant also attended a police station to report the incident but did not provide a statement, as she was concerned that she had not reported the matter to the Respondent at that stage.
On the evening of 28 April 2023, the Applicant attended the restaurant and spoke to Mr Yuan and Ms Lu. The Applicant advised Mr Yuan that she could not attend work for about one week. The Applicant says she was advised that if she could not work, she would not be paid and was advised that the matter was not a workers’ compensation matter, as she was not injured because of her ‘work’ but rather due to fighting with a colleague.
The Applicant says that she was advised that she would be paid annual leave for her absence.
On 30 April 2023, the Applicant returned to the police station and made a statement to the New South Wales Police regarding the incident on 27 April 2023.
The Respondent normally publishes its roster each Sunday for the next week by sending it to employees through ‘WeChat’, a social media and instant messaging application. The roster is based on a Monday to Sunday week.
On the evening of 30 April 2023, the Applicant received the roster for the week commencing Monday 1 May 2023. The Applicant then telephoned Mr Yuan and advised him that she needed time off. The Applicant was advised that if she needed time off, she was required to submit a medical certificate.
On Monday 1 May 2023, the Applicant attended her doctor and was certified unfit for work from 1 May 2023 until 15 May 2023 inclusive. The Applicant sent a copy of the medical certificate to Ms Lu.
At approximately 9:59pm on 1 May 2023, Mr Yuan telephoned the Applicant. The parties are in dispute about what occurred during this telephone call. Mr Yuan stated that during this telephone call, he dismissed the Applicant for fighting with her colleague. The Applicant stated the topic of discussion related to her application for sick leave. The Applicant stated that while Mr Yuan was unhappy that she would be on sick leave for two weeks, she denies that she was dismissed and she was expecting to return to work on 15 May 2023.
At approximately 10:42pm on 1 May 2023, Ms Lu posted two messages in the Respondent’s WeChat Group. The messages were posted in Mandarin. During the proceedings, the interpreter translated the messages as follows:
First message:
@yifei@(indistinct). Because of the fights and (indistinct) between both of you, one of you refused to work and it further caused the restaurant not to be able to operate normally. The company, out of discipline, is issuing a penalty of serious warning against both of you.
Second message:
Due to the fact that the restaurant cannot run normally the company will make adjustments to the personnel and the parties involved shall bear the outcomes from such adjustments.
Ms Lu disagreed with the translation. Ms Lu stated that Mr Yuan advised her that he dismissed the Applicant, and having been informed of that, she provided a warning to Chung, the other employee involved in the altercation. Ms Lu stated that any reference to both employees receiving a warning was a typographical error on her part. She further stated that the reference to adjustments in the second message was a reference to the Applicant being dismissed.
At approximately 12:35pm on 2 May 2023, the Applicant posted a reply in Mandarin in the WeChat Group, which was translated by the interpreter as follows:
On 27 April I was hurt by Chung (indistinct). As a consequence, I was traumatised and had difficulty falling asleep. I cannot work normally. On 28 April I applied to the boss, orally, for sick leave but on the request of our boss on 1 May I submitted a medical certificate issued by (indistinct) therefore it was not me who refused to work. I hope everyone can understand such effects and I would like to also seek the understanding and consideration from sister Cho and Li Wha(?) and apologise for any inconvenience posed.
The Applicant did not attend work in the week commencing 1 May 2023. Ms Lu sates that following the telephone call on 1 May 2023, the roster for that week was updated. The roster, which was annexed to Ms Lu’s statement, identifies no shifts allocated to the Applicant.
In the week commencing 1 May 2023, the Applicant received payment of an amount equivalent to her normal salary for the week commencing 24 April 2023. The payment comprised wages as well as annual leave for the days the Applicant did not attend work following the altercation with Chung on 27 April 2023.
On 7 May 2023, Ms Lu posted the roster for the week commencing 8 May 2023. The Applicant received the roster through the WeChat Group, of which she remained a member. The roster included the Applicant’s name with no allocated shifts.
In the week commencing 8 May 2023, the Applicant received payment of the balance of her accrued annual leave, which equated to approximately 3-4 days’ pay.
On the afternoon of 14 May 2023, the Applicant sent a message to Ms Lu stating that she was able to return to work. Ms Lu received that message but did not respond.
Later that day, Ms Lu posted the roster for the week commencing 15 May 2023. The Applicant received the roster through the WeChat Group. The roster included the Applicant’s name with no allocated shifts. On 15 May 2023, the Applicant sent a message to Ms Lu asking why she did not have any shifts. Ms Lu received that message but did not respond.
On 21 May 2023, Ms Lu posted the roster for the week commencing 22 May 2023. The Applicant received the roster through the WeChat Group. Again, the roster included the Applicant’s name with no shifts allocated.
On 23 May 2023, the Applicant sent a further message to Ms Lu asking why she did not have any shifts. Ms Lu received that message but did not respond.
The Applicant did not receive any rosters after 21 May 2023.
On 31 May 2023, the Applicant lodged the Application through the Commission’s OLS.
The Commission’s file records that on 5 June 2023, the Commission attempted to contact the Respondent to confirm the Respondent’s telephone and email contact details.
On 6 June 2023, the Commission sent correspondence to the Applicant advising that the Application was unable to be read and requested the Applicant to resubmit a completed form by 20 June 2023. The correspondence records that the Application had been assigned matter number C2023/3158, and that if a completed form was not received by 20 June 2023, the Application would likely be dismissed.
On 7 June 2023, the Applicant attended the Commission’s registry in Sydney and made an application pursuant to s.372 of the FW Act (372 Application).
On 13 June 20213, the Commission’s registry contacted the Applicant to ascertain which application she was proceeding with.
On 14 June 2023, the Applicant attended the Commission’s registry in Sydney and filed the Amended Application. The Applicant advised that until she sought legal advice, she wished to proceed with both the Application and the 372 Application.
On 17 June 2023, the Respondent removed the Applicant from the WeChat Group.
On 20 June 2023, the Applicant discontinued the 372 Application.
Summary of the Applicant’s Submissions
The Applicant submitted that the discussion on 1 May 2023 was limited to the Applicant’s sick leave and that she was not told that she was dismissed.
The Applicant submitted that following that discussion, the Respondent posted a message in the Respondent’s WeChat Group advising all employees that the Applicant and Chung had been warned.
The Applicant submitted that while on sick leave she continued to receive rosters which did not allocate shifts to her, which is consistent with her being on sick leave.
The Applicant submitted that she was fit for work from 15 May 2023, and that the lack of contact from that time indicated that that was the point at which she was dismissed.
The Applicant submitted that in the alternative, if the Application was found to be out of time, then the Commission should grant an extension of time pursuant to s.366(2) of the FW Act.
Summary of the Respondent’s Submissions
The Respondent does not dispute that it dismissed the Applicant, but submits the dismissal took effect immediately on 1 May 2023.
The Respondent submits that it did not advise the Applicant of her dismissal in writing because she was not employed pursuant to a written contract.
The Respondent submitted that its usual practice is to indicate ‘sick’ on the roster if an employee is sick. The Respondent submitted the absence of a ‘sick’ marking on the roster indicates the Applicant was already dismissed.
The Respondent stated that it had ‘doubts’ about whether an application was submitted on 31 May 2023.
The Respondent questioned how the Applicant could know she was dismissed as at 31 May 2023 if she was requesting to be placed back on the roster on 14 and 23 May 2023.
Consideration
The issue in dispute is whether the Application was made within 21 days.
As observed by the Full Bench in Matthew Duncan Hatch v Woodside Energy Ltd,[1] there are two temporal events in s.366(1)(a) of the FW Act: the date the dismissal took effect and the date that an application is made.
Taking into consideration the relevant background, I consider it necessary to make findings in relation to both temporal events.
The date the dismissal took effect
The parties are in dispute about when the dismissal took effect. The determination of this issue turns on whose evidence is preferred.
The Respondent does not dispute that it dismissed the Applicant but submits it did so on 1 May 2023. The Applicant denies she was dismissed on 1 May 2023, and submits that the failure to communicate with her and provide work following her period of sick leave constituted a dismissal.
For the following reasons, I prefer the evidence of the Applicant to that of Mr Yuan and Ms Lu and find that the Applicant was not dismissed on 1 May 2023.
First, almost immediately following the telephone call, Ms Lu posted a message in the WeChat Group giving a warning to both the Applicant and Chung. While Ms Lu states that the warning (insofar as it was directed to the Applicant) was a typographical error, demonstrated by the reference to ‘adjustments’ in the second message, there was no retraction of the warning at that time or after the Applicant responded the next day, and ‘adjustments’ could simply refer to amendments to the roster to cover the Applicant’s absence on sick leave.
Second, the Applicant’s name remained on the roster, and she was provided with copies of the roster for the next three weeks.
Third, the manner in which the Applicant was paid is consistent with her uncontested evidence that she would receive annual leave for the period of her absence rather than sick leave.
Fourth, consistent with the Applicant’s understanding that she was on sick leave, she contacted Ms Lu on 14, 15, and 23 May 2023 regarding her return to work.
In relation to when the ‘dismissal’ took effect, in my view, it was the conduct of the Respondent in the period of 14 to 23 May 2023 that resulted directly or consequentially in the termination of the Applicant’s employment. That conduct was:
(i)The failure to provide shifts to the Applicant beyond 15 May 2023, the expiration of her medical certificate;
(ii)The failure to respond to her messages regarding why she was not provided with any shifts in the weeks commencing 15 May 2023 and 22 May 2023; and
(iii)The failure to provide further rosters to the Applicant beyond the week commencing 22 May 2023.
I consider the effective date of dismissal was most likely 23 May 2023. That was the date the Applicant last corresponded with the Respondent and was in the second consecutive roster period that the Respondent failed to provide shifts to the Applicant following the expiration of her medical certificate. Furthermore, it was immediately following the last occasion the Respondent provided a copy of the weekly roster to the Applicant.
The date the Application was made
The Application was made through the Commission’s OLS at 8:20pm on 31 May 2023.
While the Application was unable to be read, the Commission’s file and the OLS receipt issued on 31 May 2023 records that the Application identified the Applicant, the Respondent, that an application was being made pursuant to s.365 of the FW Act, and that the application fee was paid.
It is sufficiently clear that the Applicant was seeking to make a general protections dismissal application pursuant to s.365 of the FW Act.
The Commission has previously found that an application has been made despite the lodging of an incorrect form, blank form, partially completed form, or a form in an unreadable format.[2]
Having regard to the Application filed and the authorities referred to above, I am satisfied that the Application constituted an application ‘made’ within the meaning of s.366(1) of the FW Act.
To the extent that it is necessary, I waive any irregularity in the form or manner in which the Application was made pursuant to s.586 of the FW Act.
Accordingly, the date the Application was made is 31 May 2023.
Conclusion
The effective date of dismissal was 23 May 2023. The date the Application was made was 31 May 2023. Based on these findings, the Application was made within the 21-day period.
Accordingly, an extension of time is not required. The matter will be listed for a conference pursuant to s.368 of the FW Act.
COMMISSIONER
Appearances:
L. Cottam, solicitor or the Applicant.
J. Yuan with M. Lu, for the Respondent.
Hearing details:
2023.
Sydney:
9 August.
Printed by authority of the Commonwealth Government Printer
<PR766801>
[1] [2023] FWCFB 51 (Hatch) at [37]-[39].
[2] Arch v Insurance Australia Group Services Pty Limited[2020] FWCFB 601 at [30]-[34]; Hatch at [48]; Luke Alexander Oakes v Fernance Enterprises Pty Ltd T/A Autobarn Lismore[2023] FWCFB 69 at [39]; Amy Brunskill v Federation Children Nth Geelong Pty Ltd[2023] FWC 1756 at [27]-[36].
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